Paxson v. Gast
| Decision Date | 04 November 1919 |
| Citation | 215 S.W. 515,202 Mo.App. 610 |
| Parties | JULIA L. PAXSON, Respondent, v. ALEX. T. GAST, Appellant |
| Court | Missouri Court of Appeals |
October 10, 1919, Argued and Submitted
Appeal from the Circuit Court of the City of St. Louis.--Hon. Wm. M Kinsey, Judge.
AFFIRMED.
Judgment affirmed.
John T Fitzsimmons for appellant.
(1) With reference to the first assignment of error the court should have sustained appellant's demurrer to the evidence because it clearly appeared upon the testimony of the plaintiff Paxson that, at the time that he rendered all the services sued for, he was attorney for the trustee in bankruptcy, Amazon Rubber Company, and received compensation as such attorney for the trustee. As attorney for the trustee of that company, and also as attorney for a creditor having a bandruptcy claim against that company, he acted in a double capacity, served conflicting interests, and, having asked and received compensation from the trustee in bankruptcy, he could not recover compensation from the creditor. 4 Cyc, p 982; In re Southern Steel Company, 169 F. 702. In re Strobel, 160 F. 916; McDonald v. Wagner, 5 Mo.App. 56 Stone v. Slattery, 71 Mo.App. 442; In re Bowman, 7 Mo.App. 569; Stewart v. Emerson, 70 Mo.App. 482; 1 Loveland on Bankruptcy (4 Ed.), pp. 256, 257, also p. 240 (and authorities cited); 1 Remington on Bankruptcy (2 Ed.) sec. 851, p. 679 (and authorities cited). (2) Plaintiff's single instruction should not have been given and was defective because (a) it submitted to the jury the question whether "plaintiff rendered such services," in connection with the allowance of the claim, "when not acting as the attorney for the trustee of said bankrupt;" (b) because it was demonstrated completely by plaintiff's own evidence that he was acting at attorney for the trustee at all times that he acted as attorney for the claimant; (c) because it authorized the jury to find for the plaintiff if he rendered the services sued for in connection with the composition agreement "whether he was acting as such attorney or not," i. e., as attorney for the trustee in bankruptcy. Authorities cited in point 1; Also: Remington on Bankrupcy (2 Ed.), section, 896, 897. pp. 714, 715. (3) With reference to the value of plaintiff's services for "preparing, filing and having allowed" a claim for $ 5,022.50 against the estate of Amazon Rubber Company, a bankruptcy, the dividends paid by the trustee in bankruptcy upon this claim, especially dividends paid after filing of suit and up to the time of trial, were irrelevant, immaterial and highly improper, both in the testimony of the plaintiff and as elements in the opinion testimony of the attorneys who appeared as witnessess for plaintiff. Smith v. Couch, 117 Mo.App. 267; Kingsbury v. Joseph, 94 Mo.App. 298. (4) The court excluded testimony to the effect that it was a common practice for the clerk of the Referee in Bankruptcy to draw proofs of claims in bankruptcy for fifty cents each, on the ground that the services, rendered by Mr. Paxson, in connection with the claim of Mr. Gast, were the services of a lawyer and not of a clerk or notary public. This amounted to holding as a matter of law that these services were professional legal services, whereas this was a question for the jury.
John A. Gilliam for respondent.
(1) The only pleading by appellant is a general denial (Abs., p. 5). This pleading does not raise any question of double agency or doubt employment. Beattie Mfg. Co. v. Gerardi, 214 S.W. 189. (2) There is no pleading of double agency or double employment, therefore appellant has wasted printer's ink. Bell v. Warehouse Co., 205 Mo. 475, 492, 493.
Alfred A. Paxson filed his petition in this cause, in which he sets out that he is an attorney and counselor at law, duly admitted to practice in the courts of this State and of the United States, and engaged in the practice of law in St. Louis; that the defendant, Alex. T. Gast, having a subsisting claim and cause of action against the Amazon Rubber Company, a corporation organized under the laws of this State, but which had been adjudged a bankrupt in the United States District Court for this district, and was under process of administration under the bankruptcy laws of the United States, on or about the month of June, 1915, employed plaintiff as his attorney to prosecute his claim and have the same allowed against the estate of the bankrupt corporation and to advise and counsel defendant in and about his interest in the corporation, and to advise defendant as to the method and means of protecting him as a stockholder in the corporation, defendant being at the time a large stockholder therein, and as to the means of securing an extension of time from the creditors of the corporation, and an agreement for a composition with such creditors, in order that the corporation might continue in business; that in pursuance of this employment, plaintiff performed the services and defendant accepted and received the results of the services and became liable to plaintiff for the reasonable value thereof, which plaintiff avers to be the sum of $ 267.42, as more particularly set out in an itemized statement which follows. This statement contains two items, the first for services in preparing, filing and having allowed by the referee in bankruptcy a claim for $ 502.50, on which a dividend of 33 1/3 per cent. was declared and paid September 20, 1915, amounting to $ 1674.17, and on which another dividend of about the same amount, "and possible more," will be declared. One hundred sixty-seven dollars and forty-two cents is claimed for this. The other item is for services in drawing up an agreement to extend time of payment of the debts of the Amazon Rubber Company, and counsel and advice in an effort to effect a composition at fifty cents on the dollar, with the creditors of the company, in which defendant was largely interested as a stockholder. One hundred dollars is charged for this.
Averring that the charges are reasonable, demand of payment and refusal, plaintiff asks judgment for $ 267.42.
The answer was a general denial.
On a trial before the court and a jury, the jury returned a verdict in favor of plaintiff in the sum of $ 167.42. A motion for a new trial was duly filed, overruled and exceptions saved and judgment going in accordance with the verdict, defendant has duly appealed.
Pending the appeal Mr. Paxson, plaintiff, died and his death being suggested, the cause was revived in the name of his widow, Julia L. Paxson.
There was much testimony taken in the case, of which it is sufficient to say that plaintiff testified to the rendition of the services at the request of the defendant and testified as to the value of them as charged. It appeared that the trustee in bankruptcy and plaintiff had offices together; that defendant saw the trustee and asked him whether it was necessary to employ an attorney. The trustee told him that that was usually advisable and introduced him to plaintiff and, according to plaintiff, defendant thereupon employed him, first, as to presentation of his demand of $ 5000 to the trustee and before the referee against the estate, the demand evidenced by a note, and afterwards to advise defendant in connection with a proposed compromise among the creditors of the bankrupt corporation. Plaintiff also introduced evidence of other witnesses tending to prove the value of his services, that valuation running from ten to a hundred and fifty dollars, as to the first item, and from twenty to a hundred dollars on the second item.
The defendant testified that he went to see the trustee about proof of his claim to the $ 5000 note; that this was about June 30, 1915, and that he had never been in the defendant's office before that time, and had never been in his office to consult him about the proposed composition agreement, and had never seen the proposed agreement drawn up by plaintiff until it was produced in court; that he had employed another attorney to attend to the proposed composition. He also introduced evidence tending to contradict that of plaintiff as to the value of the services. Plaintiff introduced testimony in rebuttal of defendant's testimony.
In the course of the trial, defendant introduced evidence to show that plaintiff was also the attorney for the trustee. He also offered evidence to the effect that it was a common practice for the clerk or referee in bankruptcy to draw up proofs of claim and charge fifty cents for it. The latter was excluded.
Defendant also objected to testimony as to the fact of the collection of the dividend. It appeared in evidence that a check was made out by the trustee for $ 1674.17, the full amount of the first dividend declared; that plaintiff banked it and remitted a check to defendant for $ 1506.75, that being the amount of the trustees' check less plaintiff's charges. Defendant disputing his right to make this deduction, plaintiff gave defendant a check for the whole amount of the dividend, and then brought this action to recover his fee.
The assignments of error by learned counsel for appellant are the error of the court in refusing a peremptory instruction in the nature of a demurrer, asked by appellant; to error in giving an instruction at the instance of plaintiff; to error in admitting in evidence on behalf of plaintiff testimony as to the amount of dividends which were declared and paid to appellant upon the allowed claim, after the services "in preparing, filing and having allowed" the claim had been rendered by plaintiff; in permitting attorneys who gave opinion evidence in behalf of plaintiff in regard to the reasonable value of the services claimed to have been...
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